Religion Laws Quickly Fall Into Retreat in Indiana and Arkansas

INDIANAPOLIS — Roman Catholic nuns and brothers in robes along with conservative activists and lawmakers, all surrounded Gov. Mike Pence of Indiana last week as he signed what was billed as a religious freedom law. Smiling and proud, some of them had cheered the bill as a way to protect religious business owners from having to provide cakes and flowers to same-sex weddings.

But on Thursday, as the state’s top Republican legislative leaders here announced they were changing the law to specify that it will not authorize discrimination because of sexual orientation or gender identity, a far different cast stood behind them, including a prominent gay businessman and corporate leaders from Eli Lilly, the Indiana Pacers and the Indiana Chamber of Commerce.

And this time, the mood was tense: There were simple nods of support, no wide smiles.

The shift in Indiana has played out with remarkable speed, and under the shadow of a soon-to-arrive Final Four men’s basketball tournament and the national attention that promises. For a place that a little more than a year ago appeared headed toward enshrining a same-sex marriage ban in its Constitution, the winds have shifted swiftly, leaving some conservative Christian leaders unsettled and uncertain about what may come next for state laws focused on what is called religious freedom and the alliance that adopted that phrase as its battle cry.

Religious conservatives and some Republican political operatives now describe what occurred here as a major setback. For years now, they have been using “religious freedom” as a slogan and the legal answer to the growing gay rights movement. With same-sex marriage racking up one win after another in the courts and in public opinion, the conservatives say they believed their strategy of passing religious rights laws seemed like a consensus solution as American as Abe Lincoln.

But now, many Christian conservatives say that what happened over the last week in Indiana — and in Arkansas, where lawmakers backed away from a similar law — has been a terrible blow to their movement. They are left with a law at war with itself, with language that seems to cancel out what it had been designed to accomplish.

“Twenty years from now, this Final Four weekend as well as the special religious celebrations for many in our community will likely be a sweet memory,” said Curt Smith, of the Indiana Family Institute, who had pressed for the original law and had attended the signing ceremony. “But religious freedom and freedom of conscience will still be a pressing concern if this legislation becomes law.”

The campaign by conservatives to make “religious liberty” a rallying cry made its public debut in 2009, when a coalition of conservative evangelical, Roman Catholic and Eastern Orthodox Christian leaders issued a manifesto they called the Manhattan Declaration, proclaiming that they would not cooperate with any laws that compelled them to recognize same-sex marriages or enable abortions.

Their cause took on new urgency in the following years as the United States Conference of Catholic Bishops took the lead role in opposing a mandate in the Obama administration’s health care overhaul that would require employers to provide insurance that covered birth control. The bishops conference said that it would be an infringement of religious freedom for Catholic institutions such as colleges or hospitals — or even an individual Catholic owner of a business as small as a Taco Bell franchise — to be forced to cover birth control.

Soon bishops were holding rallies and Masses devoted to religious liberty, urging Catholics to pray and become politically active. A conservative think tank in Washington, the Ethics and Public Policy Center, hired a state policy director, Tim Schultz, and created a program to work the statehouses and advise elected officials interested in sponsoring religious rights acts. The bills set a legal framework for people or companies to challenge government rules that they believe hamper religious beliefs or practices.

Conservative leaders held conferences, drawing into the coalition Mormon leaders and a small showing of Orthodox Jews, Muslims and Sikhs, along with legal advocacy groups, and conservative organizations like the Family Research Council and the Heritage Foundation.

The defenders of the law in Indiana and other states now say the impetus was never about objections to same-sex marriage. They say the purpose was defending the rights of religious minorities, such as the Muslim prisoner who was forced to shave his beard — a case recently won at the Supreme Court.

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Two republican members of the Indiana legislature, Representative Brian C. Bosma and Senator David C. Long, said changes will be made to the state’s Religious Freedom Restoration Act.CreditCreditAaron P. Bernstein/Getty Images

But the sudden spate of state religious rights laws proposed or passed in just the last two years was prompted by alarm over the Supreme Court’s decision in the Windsor case in 2013 that required the federal government to recognize same-sex marriages from states that allowed such unions, said Mr. Schultz, who last year spun off his work into an independent organization. “I think the dividing line is the Windsor case,” he said. “It’s the dividing line that explains culturally why in the last two years, people have had an interest in the issue.”

The Supreme Court’s decision in the Hobby Lobby case in 2014, which relied on the federal Religious Freedom Restoration Act to find that a Christian-owned company can refuse to cover birth control in its employees’ insurance plans, reinforced the conservative movements’ enthusiasm for state laws.

Here in Indiana, the battle over the measure seemed to emerge suddenly; it was introduced in the State Legislature in January. But it followed years of political struggle in this overwhelmingly Republican State Legislature over same-sex marriage. It also arrived only six months after a federal ruling struck down the state’s ban on gay couples’ marrying.

For years, social conservatives in the state, where statute barred gay people from marrying, had pushed to add an amendment to the State Constitution. Though the state has long leaned conservative, it has a rigorous requirement to change the Constitution — two votes by separately elected legislatures, then a statewide vote — and the effort moved slowly.

In 2011, the same-sex marriage ban easily cleared both chambers by wide margins. Firm Republican majorities in 2014 seemed to assure an easy second vote, which would have sent it onto ballots in November.

But by early 2014, the mood here had shifted. Opponents, bolstered by some top Indiana corporations that were worried about alienating customers and employees, publicly denounced a constitutional amendment. They used statewide phone banks and canvasses to fight it. And by February of last year, over the pleas of the conservative groups, the Republican-controlled Legislature revised the wording of the ban. The revision effectively stalled the possibility of a statewide ballot measure for a constitutional amendment for at least two years, and maybe forever. Opponents declared victory, and then in June, a federal court overturned the state’s statutory ban on same-sex marriage.

By late 2014, State Senator Scott Schneider, a Republican, told the Indianapolis Star that he planned to introduce a Religious Freedom Restoration Act modeled after existing federal law.

“The focus has been on same-sex marriage because that’s the hot topic right now, but it goes far beyond that,” Mr. Schneider told the newspaper at the time. “It’s important to have some religious freedom and protection.” Some Christian conservative leaders, including Micah Clark, of the American Family Association of Indiana, said at the time that they believed the measure would allow small companies, such as florists and bakeries, to decline to provide services to gay couples who were marrying.

But Democrats and gay rights advocates said they saw the proposal as a consolation prize to an important Republican constituency for the stalled constitutional amendment.

Quickly, objections mounted. Some of the same major corporations that had opposed a ban on same-sex marriage a year earlier announced their dissatisfaction over the religious freedom bill. Timothy D. Cook, the chief executive of Apple, condemned the law, as did other Silicon Valley executives, and all the while, the Final Four was approaching.

Sixteen prominent legal scholars, including one of the authors of the Manhattan Declaration, sent a letter to Indiana’s senate judiciary committee in early February urging the committee to pass the religious freedom act, reassuring the committee that in no way was the law “a license to discriminate.” But by this week, Mr. Pence, the governor, was visibly alarmed by the economic fallout threatening his state. State leaders were in retreat. Mr. Pence said he wanted a revised law. And as lawmakers announced the planned revisions Thursday, some business leaders and gay rights advocates spoke of further changes ahead; the state, some said, soon needed to add sexual orientation and gender identity to its broad civil rights protections.

State lawmakers made no promises, but said they felt sure the issue would be raised in a coming session.

Conservatives complained that lawmakers had given in to “the radical left.”

“It’s like paying ransom to a captor, and will put people of faith in the cross hairs of gay activists who will use this new legislation as a weapon to force people of faith to participate in same-sex ‘marriage’ ceremonies and other activities that violate their deeply held religious beliefs,” said Brian Brown, the president of the National Organization for Marriage, in a statement. “Refusing to be part of a same-sex ‘wedding’ is not discrimination, but this new legislation treats it as such.”

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